The plight of divorced dads

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Of the myriad forms of discrimination men cite, one looms over the rest: The egregious treatment meted out to fathers in the throes of contested child custody following the "no-fault" divorces most of them did not initiate or desire.

No other topics I write about so consistently provoke passionate personal response as those dealing with systemic discrimination against men. When, for example, I point out double standards for boys and girls in the health care system, or expose the use of bogus statistics around domestic violence, my inbox fills with male gratitude simply for acknowledging an obvious fact: Our culture is profoundly misandric.

Of the myriad forms of discrimination men cite, one looms over the rest: The egregious treatment meted out to fathers in the throes of contested child custody following the "no-fault" divorces most of them did not initiate or desire. My files bulge with stories of disenfranchised fathers ripped from their children's arms and lives. They have lost their homes, their careers, fortunes, friends and reputations, often on the basis of false allegations of abuse (for which their female accusers are virtually never punished). I wouldn't mention such anecdotal evidence, if the anguish in these testimonials didn't jibe with objective data confirming the shameful gender bias that dominates the family law system.

About half of all marriages end in divorce. Women are twice as likely to initiate a divorce as men, largely because they can be fairly sure they'll end up with control of the children. Where shared parenting is the default template, divorce rates plummet. Men are six times as likely as women to commit suicide within the first two years after a separation: That they kill themselves from despair rather than their ex-wives for revenge is, ironically, a tragically eloquent rebuttal to the feminist credo that men are inherently dangerous to women. Although 25% of women make more money than their spouses, 97% of support payers are men (even in cases of shared parenting). Mobility decisions favour women: The psychological comfort to a Vancouver mother of moving near her Toronto-based family will be privileged over the psychological devastation the virtual loss of his children causes the Vancouver-bound father.

Misandry in family law begins with an ideology that views children as the property of women, even though many peer-reviewed studies show children want and need both parents, and no studies show sole parenting by a mother serves children's best interests. This ideology is instilled in judges during training sessions featuring feminism-driven materials, and subsequently often plays out as unaccountable kangaroo courts. The result is that an adversarial mother who initiates a divorce against the will of the father - however indifferent her parenting skills, however superb his and even if the children spend their days with nannies or day care workers - pretty well has a lock on sole custody of the children. If she denies rightful access to the father, she will never be punished at all. Conversely, if he withholds money, he will be criminalised: His picture as a "deadbeat dad" may appear on government-sanctioned Internet sites, and if he goes to jail, as is likely, he will serve a longer sentence than cocaine dealers.

Most men think such kafkaesque scenarios can't happen to them. Happily married men parenting with equal diligence believe in their hearts that men who find themselves savaged by the family law system are congenital losers, or were demonstrably lousy husbands and fathers. Many such "winners" are in for an unpleasant surprise.

"We want to pull away from the idea that parents have rights in relation to their children," said Jennifer Cooper, chair of the Canadian Bar Association's family law section, representing 2,200 divorce lawyers. "Parents" in this statement is the hypocritical lip service feminism pays to humanism: She meant "fathers," for women's rights today are never "pulled away from," only supported or furthered. In the days when children belonged to both their parents, it used to be said that children were "hostages to fortune." Today they are hostages to feminism and the state.

In his new, cleverly titled book, Taken into Custody, Stephen Baskerville, president of the American Coalition for Fathers and Children, paints a bleak picture of the routine injustice a divorcing father can expect when a woman initiates a divorce. Baskerville baldly warns: "If I have one urgent piece of practical advice for young men today, it is this: Do not marry and do not have children." His book, like many others of the genre, makes a persuasive case. Men should read them. If the system does not become equitable, don't be surprised if men choose increasingly, and with reason, to play their trump card: Voting for equality with their condoms.

High divorce rates have long been a reality of Canadian society, but the institution of failed marriages is evolving. The National Post investigates some of the changes, from the effects on children to the impact on the workforce to a trend that sees couples continue to live together - even as they are splitting apart.

Martha McCarthy, who has been practising family law for more than 15 years, says the worst part of her job is that moment when she must tell a client that no matter what - no matter how intolerable the situation - they have to remain in the house with the spouse they are determined to divorce.

She does it, she says, because the precedent in modern Canadian divorce law compels her to, and because her client would otherwise be woefully disadvantaged in the legal proceedings if they were first to yield the marital battleground.

Where once most couples sought separate accommodation shortly after deciding the marriage was over, today's divorcing couples often remain together in the same home for a period of time, sometimes for extended periods.

Ms. McCarthy, who runs a busy family law practice in Toronto, says she has had divorcing clients - even not entirely amicable ones - who remain in the same house for as long as three years.

It is a trend driven by legal precedents that tend to punish those who move out, particularly in the matters of custody and access to children, and also occasionally by a reluctance to settle for lesser-quality accommodation.

In practical terms, however, it can be an excruciating day-to-day existence for couples barely on speaking terms to play house at a time when their animosity toward each other is often white-hot.

"In the beginning, I wanted to scream all the time," said Louise, who launched her own blog, Tag You're It, to vent about what it was like to keep living with her husband after finding out he had cheated.

"Kick him out? Maybe that worked 20 years ago. Lawyers do not advise their clients to leave the matrimonial home, even though it may be the best thing to do emotionally?

"Initially, he agreed to move out. But after he went to his lawyer, everything changed," she said in an interview.

"His lawyer told him to stay put, and he did."

More than eight months later, the pair are still in the same suburban house in which they raised their three children during 10 years of marriage. Together, they have prepared the house for sale, completed renovations, painted and primped up the family home.

"But the anger is enough to make you do and say things you'd rather not," said Louise, not the real name of the 44-year-old professional who is as disarmingly candid as she is attractive.

"Living together is pretty volatile.? It's hard to figure out the issues when every day you wake up and come face to face with pain and anger."

Ms. McCarthy says she has had clients who have squabbled about sharing groceries with each other and who refuse to do each other's laundry.

She has even heard of one couple who used duct tape to draw a dividing line through a house - but still they reside under one roof until some sort of agreement, though tentative, is worked out.

"Status quo matters," Ms. McCarthy said, trying to explain the pragmatic working of divorce law. If a couple decides the best thing is for one party to temporarily vacate the house, leaving the kids behind, then that will become the acceptable norm for the courts, she said.

"It is extremely prejudicial to the person moving out."

So how does she sell her clients on a proposition that for many of them is utterly unpalatable? This is what she tells them: "You cannot agree to anything on a temporary basis that you wouldn't be willing to live with in the long term."

And so, she explains, for anyone who seeks some sort of serious child custody arrangement or desires sole custody of children, relinquishing any bit of ground in the household arrangement - even temporarily - is simply out of the question.

Grant Gold, another family law lawyer who has a surprising number of clients who continue to live together for increasingly long periods of time, says he tells those who say they cannot stand living in the matrimonial home that "what you lose by getting out is the ability to get back in a hurry.? I don't want anybody leaving until there are arrangements in place for kids, for money; if you're the dad, I don't want you leaving until we have visitation nailed down."

That was certainly the experience for one lawyer, whose wife told him she was tired of the big house, his demanding job, and everything else about their upscale lifestyle when she said she wanted a divorce.

(He didn't discover until months later that she had hooked up with the basement renovator.)

"I felt sick being around her after a while. I was told not to move out until I had something in writing," said the man, who does not want to be identified.

His three children were teenagers when his marriage broke up, and he wanted to ensure he had equal access to them.

He ended up staying in the same house for four mostly unbearable months before getting an equitable interim agreement on custody.

Ms. McCarthy, the family law expert, says she has had several cases where one partner's refusal to move out, and the intractability and generally untenable situation, is what ends up driving an otherwise reluctant partner into an agreement.

She says the only alternative is for couples to employ what is known as a "nesting" arrangement, in which the children remain the constant in the house with a changing case of parental characters in charge of the home.

But that, too, can be fraught with tension over such things as sharing closet or fridge space, and even, on opposite nights, a bed.

It is all a far cry from the kinds of post-marital arrangements described in a new book by Toronto journalist Cate Cochran, Reconcilable Differences: Marriages End. Families Don't.

In it, Ms. Cochran - whose break-up with her husband was so amicable that they bought a house together (split into two separate apartments) so they could both continue to live with their children - chronicles the unconventional arrangements of upstairs-downstairs next-door neighbours, let's-get-on-with-it divorcers like her.

The book refers to these as "re-arranged marriages," and Ms. Cochran describes her own situation this way: "We share a house. He lives upstairs, I live downstairs, and our young children and dog float between us. It is unorthodox, but we've discovered we're part of a growing number of couples who, for the sake of their children, are creatively reconfiguring their families from the ruins of disintegrating marriages."

In fact, even in those cases where the animosity is most palpable, such as that of Louise, the cheated-on wife blogger, there are still considerable moments of reprieve from what is otherwise the volatile storm of daily life with a soon-to-be ex.

"It's not healthy or happy. But it's not like that all the time. We'd both be dead if it were," she said.

"We have to go to work, make dinner, and take the kids to lessons. We go out for walks, watch movies, and eat at our favourite restaurants.

"On some occasions, we have sex. Yes, really.? Relationships rarely have a clean-cut ending."

The separation began quite amicably for Stephen Dunn and his wife. "We said, 'We're not going to be like those other couples. We'll sell the house, each move somewhere else, get on with our lives.' "

His wife, a 45-year-old business school graduate who had taken time out of the workforce to raise the couple's children, had continued doing consulting work for her husband's company and other firms and was talking about starting up her own business.

Five years later, the Toronto-area couple seem no closer to getting a settlement in what have become increasingly acrimonious divorce negotiations. According to the court proceedings, Mr. Dunn's ex-wife appears ill-inclined to look for a job and, now 50, is also much less likely to get one.

"She has no incentive to settle, no incentive to get a job," says Mr. Dunn, 54, resolution-weary and recently given a severance package from his high-paying job as a currency trader with Manulife.

Mr. Dunn may sound like just another disgruntled spouse unhappy with his lot in a bitter breakup, but his complaints are indicative of a growing concern among those involved in divorce law - couples and lawyers - that the system is no longer encouraging self-sufficiency among divorcing spouses.

Spousal support, once considered a transitional hand-up for the spouse (most often the wife) left at an economic disadvantage by the marital breakup, is increasingly being viewed by the courts as an indefinite obligation, or a lifelong handout.

There are myriad cases of divorcing couples with highly qualified partners who are neither expected, nor even encouraged, to return to work, even after their children are grown.

With equal opportunity and high employment, why do so many court judgments still assume that a partner, usually a wife, who has put aside work to raise a family, will remain out of the workforce forever? Is divorce court the last bastion of old-fashioned values about men and women and the equality of working?

One family-law expert says it is merely a case of the pendulum swinging back from the days when women were disadvantaged by time-limited support agreements with unrealistic expectations of how long it could take to reclaim decent salaries in the workforce.

Others see the new approach as an overreaction; one lawyer suggests a radical solution that assumes that unless there are extenuating circumstances (young children at home, the advanced age of the wife), most modern-day spouses have the ability to find some form of employment - and should deduct a basic income off any spousal settlement accordingly.

That suggestion comes from Harold Niman, a prominent Toronto lawyer who specializes in family law and has represented dozens of clients astounded to discover they are on the hook to their wives - not their children - for a lifelong term.

"The notion of a limited-term support is really the exception rather than the rule these days," he said. "Forget about the notion of self-sufficiency - it's all about dividing not just the assets, but the net disposable income, and it's for the long haul."

Martha McCarthy, another family-law practitioner, said when she began practising in the early 1990s, "there were all kinds of time-limited spousal support deals" where upper-class housewives who hadn't worked while raising children signed agreements that terminated their spousal support after five years, considered enough time for them to get back on their feet financially.

"It was all part of promoting what was known as the clean-break theory," which encouraged self-sufficiency after divorce, she said.

Then, along came the case of Moge vs. Moge, in 1992, in which the Supreme Court determined that the husband should continue long-term support of his former wife, a cleaning woman with a Grade 7 education, deemed not economically self-sufficient even 16 years after separation.

Ms. McCarthy says all of spousal-support law since has relied on that ruling, which she describes as the pendulum swinging away from a system that put women at an "unreasonable disadvantage."

But there are many who argue the system has moved too far the other way, encouraging the lesser-earning spouse (usually the woman) to avoid the return to work and remain dependent on the higher-earner for life.

"Marriage appears to be the only form of partnership that can be ended unilaterally by one partner, with an ongoing claim on the income stream of the other partner after the assets are split," says one lawyer, himself embroiled in an ongoing, bitter divorce case. He does not want his name used.

He maintains that his case is a prime example of what is

wrong with the system:His ex-wife, five years after separation, is better off financially taking the court-ordered spousal support than she would be using her own professional qualifications that could earn her at least a $50,000 salary in her highly sought-after field.

But this approach may be changing. Mr. Niman was involved in a case that recently became known in legal circles as the "faint hope" for spousal support, because the judge took the rare step of finding that the combination of time passed and job skills compelled a return to work for the divorced spouse.

The ruling by a three-member panel of the Ontario Court of Appeal, delivered earlier this year, upheld a lower-court judge's decision to terminate spousal support because of what he characterized as "the flagrant circumstances where the mother has had ample time to obtain employment outside the home but has chosen not to do so."

The ruling in the case of the divorcing Walshes cited the section of the Divorce Act that states spousal support orders may be varied "in so far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time."

This is how the judge characterized the divorce proceedings between Michael Walsh, a vice-president of institutional investments at a large insurance company with an annual income of nearly $400,000 after the couple separated, and JoAnne Walsh, who temporarily shelved her own financial services career to raise their two adopted children: "Since the time of their separation, JoAnne has pursued Michael in the courts with unflagging vigour, with extraordinary dedication and with considerable apparent bitterness and emotion. Apart from raising and serving as principal caregiver to their two adopted children, it appears that pursuing Michael in the courts continues to be JoAnne's principal occupation."

Mr. Walsh argued in 2006, more than a decade after the couple separated, that his exwife's failure to make reasonable efforts to achieve self-sufficiency constituted a change in circumstances sufficient to justify him terminating spousal support.

The judge agreed. "In my opinion, JoAnne has had a very lengthy period of time to secure meaningful, full-time employment that is commensurate with her abilities. Instead, [she] has chosen not to return to a career for which she is professionally qualified, and not to obtain other gainful full-time employment."

In the fourth-year economics seminar I teach at Queen's University, we cover a range of topics, from globalized trade to the nature of rationality. But one topic seems to attract more interest from the students than others - economics and marriage. Perhaps it is because the senior students are at an age when they are beginning to think about marriage and family questions themselves, or perhaps because it is a topic in which the real-world applications are easy to see.

For example, applying economic principles to divorce law, one would expect that the lower the exit costs from marriage (no-fault divorce, for example), the lower the "entrance requirement" would be (commitment to the marriage). Therefore, if the law makes it easier to get out, it also makes it correspondingly less important to consider the decision to get in. No great surprise there, as it is a basic economic axiom that if you lower the price of something (divorce) there will be an increase in the demand for it.

It is another set of figures, though, that spark the more intense discussion. For about 10 years now there have been many studies, both in Canada and the United States, which show a link between cohabitation before marriage with greater marital instability. That is, couples who live together before they marry are more likely to divorce than couples who do not. This year our seminar had the benefit of the latest Statistics Canada from the 2006 census, which reported again the same phenomenon.

Some students find this counter-intuitive. Their intuition is that if a couple were to live together first, they would learn more about each other, see each other with both strengths and weaknesses, and therefore be able to make a better decision about marriage. It is like a trial period for a new product, or a probationary period in a new job - a chance for the parties to see if it is a good match, with a less costly way to break off the agreement if it is not.

So why do the data show the opposite? Perhaps there might be a "selection" issue, namely that cohabiting couples are less committed to marriage initially than non-cohabiting couples. In that case, when cohabiting couples eventually get around to marrying, their lower level of commitment leads to a higher rate of divorce.

There could be another explanation though, which is that the decision to marry is not really like getting a new product or starting a new job, where functionality and compatibility are key factors. If marriage is something different, then the preparation too should be something different.

What helps marriages to endure is not the compatibility of the spouses or the delight they take in each other. After all, over time people do change, circumstances are different and the pressures of life are brought to bear. Not all age equally gracefully. What enables marriages to endure, and thrive, is the commitment of the spouses to the marriage itself. Most married couples will tell you, quite unsurprisingly, that they could never have imagined beforehand the circumstances that they have faced over the years of the marriage. Keeping one's promises and a willingness to sacrifice for the other are the foundations of marital and family stability.

The question then arises: Is cohabitation good preparation for keeping one's promises and learning to sacrifice? Perhaps not. What distinguishes cohabitation from marriage is precisely the absence of the formal promise or solemn commitment. And it is more difficult to make significant sacrifices for the other if there is less confidence in the permanence of the arrangement.

Cohabitation is bad preparation for lasting marriages because it confuses what marriage is about. It mistakes the fruits of marriage - delight in each other, a shared project in life, the joy of children - with what constitutes the essence of marriage itself. The fruits, to mix the metaphor, are the result of the foundation - which is built by duty, commitment, sacrifice, loyalty, perseverance and fidelity. What is needed is not so much a trial period of preparation, but training in those virtues. It turns out, both intuitively and according to the data, that cohabitation is not good preparation for that.

When I came to Canada over half a century ago, divorce was hard to get. The law reflected the idea that marriage was for life, with adultery being the only ground for divorce, or just about.

As some people nevertheless wanted a divorce, supplying "evidence" of adultery turned into a mini-industry.

The "witness" was usually a private detective, offering the divorce court a staged snapshot of the ostensible adulterer and a so-called "correspondent" in a compromising situation. It was considered a classy gig. Correspondents weren't necessarily hookers, and even professionals were on their best behaviour. One acquaintance supported herself through medical school by offering her services as a correspondent for something like $50 a shot. ("Well, I stayed in the skin business," she said some years later when she became a resident in dermatology.)

It was rare for a putative adulterer to actually have sex with a correspondent, but it did happen once in a while. One customer explained: "Well, I had to have sex with her, didn't I? Otherwise I would have committed perjury."

Everyone committed perjury, of course, for it was all a charade. The parties were lying and the judges knew it. Still, by playing ball on the field of hypocrisy, the participants (with apologies to La Rochefoucauld) obliged vice to pay tribute to virtue. They upheld, without necessarily realizing it, the sanctity of marriage.

As the Pill ushered in the sexual revolution of the '60s, contagion became an epidemic. Marriage's traditional sentinels and bulwarks started appearing stodgy, fatuous, even barbaric, as divorce spread from moneyed and bohemian classes to the suburbs.

Coincidentally (or not) with the rise of medical technology, came the rise of feminism. With the reduced risk of pregnancy and venereal disease (AIDS not yet being on the horizon) came further questions.

What was wrong with being sexually active? Wasn't the family a kind of patriarchal institution anyway? Wasn't it a sort of antediluvian macho saga, the story of hairy males grunting and throwing their weight around, abusing their wives and daughters within white picket fence prisons? As for marital wrongs, such as adultery, they were a joke. Putting in place draconian divorce laws, then closing our eyes to let everyone do end runs around them with nubile correspondents and private dicks, was childish and uncivilized.

When the changes came, they were rapid. From essentially no divorce in 1956, the year I came to Canada, the law progressed to no-fault divorce by 1986. Or regressed, if you take another view.

Within a single generation, from essentially not permitting spouses to dissolve a marriage except for sexual misconduct, Canada, and much of the Western world, went to a virtual invitation to spouses to do so for any reason. (Save, perhaps, for sexual misconduct. Expecting sexual fidelity was considered too uptight for females and too chauvinistic for males.) By 1982 in most jurisdictions spouses could petition for the dissolution of their union on the simple basis of fait accompli. Since they walked out of the marital home a year (or three years) ago, they were now entitled to a divorce - by return mail if possible.

And the goddess Justizia said, fine. My blindfold is at the cleaners, but don't worry. Have a no-fault divorce on me.

By the mid-1980s the law would let anyone rectify a marital mistake. True, a man would have to pay for his mistake, while a woman would usually get paid for hers, but otherwise divorce became as easy as sneezing. It was another matter whether easy or "civilized" divorce was an unmixed blessing.

I wrote a novel contending it wasn't. Final Decree appeared in 1981. It has had five editions since.

If the aim was to take the fight out of spousal conflicts, replacing "fault" in divorce with "need" didn't achieve it. Need turned out to be capable of being just as hotly contested as fault used to be. Yet by saying that in marital disputes we take into account only people's needs, not their conduct, we couldn't avoid saying we didn't care if they kept or repudiated their marriage vows. Which rendered marriage vows meaningless. No-fault divorce turned marriage into one of the most inconsequential arrangements into which two humans could enter, something midway between going to a high school dance and setting up a partnership to market designer jeans.

What next? For marriage to retain any vestige of being a solemn, sacramental union of two beings for better or worse, divorce would have to retain some residue of being a painful, wrenching, potentially deadly experience, somewhat like the separation of Siamese twins. The choice, as always, is between civilized marriage and civilized divorce.

Models? For civilized unions, research the lives of Victorians. For civilized divorces, observe a troop of baboons.

New Canadian research upends the prevailing notion that children bear the brunt of distracted and angry parents during a marital breakup.

A massive study of 5,000 children compared parenting practices between divorcing households with those that remain intact, and found that divorce was unrelated to changes in parenting behaviour.

The findings stand in stark contrast to popular misconception, the researchers say, that the "inner turmoil caused by marital dissolution automatically transforms parents into inconsistent, punitive and indifferent monitors of their children's activities and needs."

The study, published in the latest issue of the journal Family Relations and undertaken by researchers at the University of Alberta, pulls data from the National Longitudinal Survey of Children and Youth, the most comprehensive analysis of Canadian children.

It gauged the responses to a range of questions related to three kinds of parenting behaviour - nurturing parenting, consistent parenting and punitive parenting - at two time points, and found "there are more similarities than differences in parenting practices between divorced and married parents."

In fact, the study found that education and income have a much greater effect on parenting practices than divorce.

Lisa Strohschein, a sociologist and lead researcher of the study, said the findings "overturn this idea that divorce is necessarily harmful to the children and that divorce is necessarily the same for all."

The study is called "Challenging the Presumption of Diminished Capacity to Parent: Does Divorce Really Change Parenting Practices?" and it argues that such generalized assumptions "are intuitive only to those inclined to view divorce as unavoidably destructive or who infer that people with failed marriages must also lack the qualities required of a good parent."

Prof. Strohschein says these kinds of assumptions "downplay the real strengths that parents have," and this latest research proves that.

The three lines of questioning were meant to tap into the different ways divorce could be expected to affect more stable parenting behaviour: questions on nurturing parenting would capture whether there was any decline in emotional engagement or time spent with children; questions about consistent parenting would assess whether the distraction of divorce eroded established discipline patterns; and questions around punitive parenting would assess the extent to which divorce might lower the parent's tolerance of children misbehaving.

The parents - divorcing and continuously married - were asked multiple questions, their responses measured, and then were asked again two years later, and the answers compared.

"Comparing parenting behaviour at each time point between the two groups of parents reveals no differences in parenting behaviour for parents who divorce relative to parents who remain married," Prof. Strohschein concludes in the study.

She concedes that the finding "appears to fly in the face of accepted wisdom," but says such research should compel family researchers "to recognize the diversity of parenting behaviour in the period following divorce."

While undoubtedly those who lose income and are forced to move out of the family home as a result of divorce will almost certainly experience this "diminished capacity to parent," she says, there are many more divorcing couples whose parenting will be hardly altered by the ordeal.

"This study reveals that researchers still have much to learn about the divorce process and the factors that predict variations in parenting behaviour in the post-divorce period," said Prof. Strohschein, whose research has focused on children's mental health.